THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2008
Decision - DEC-E2011-075
PARTIES
Henryk Chmura
(represented by Mr. Vincent McKechnie B.L.
on the instructions of Maguire McClafferty
Solicitors)
and
Healy Bros. Timber Frame Limited
(represented by Ken Murray & Company
Solicitors)
File Reference: EE/2007/445
Date of Issue: 13th April, 2011
Headnotes: Employment Equality Acts, 1998 to 2008 - discriminatory treatment - disability - race - conditions of employment - victimisation - victimisatory dismissal - failure to establish a prima facie case
1. Dispute
1.1 This case concerns a complaint by Mr. Henryk Chmura, who is a Polish national, that he was discriminated against by Healy Bros. Timber Frame Limited on the grounds of disability and race contrary to sections 6(2)(g) and 6(2)(h) of the Employment Equality Acts, 1998 to 2008 in terms of a failure to provide reasonable accommodation in accordance with the provisions of section 16 of the Acts and in relation to his conditions of employment, victimisation and victimisatory dismissal contrary to section 74(2) of the Acts.
2. Background
2.1 The complainant referred a complaint under the Employment Equality Acts, 1998 to 2004 to the Director of the Equality Tribunal on 24th August, 2007. In accordance with his powers under section 75 of the Employment Equality Acts, the Director delegated the case on 20th January, 2011 to me, Enda Murphy, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions under Part VII of the Employment Equality Acts, 1998 to 2008. This is the date I commenced my investigation. A written submission was received from the complainant on 3rd February, 2009 and a written submission was received from the respondent on 6th February, 2009. As required by section 79(1) of the Acts and as part of my investigation, I proceeded to hearing on 15th March, 2011.
3. Summary of the Complainant's case
3.1 The complainant, who is a Polish national, stated that he was employed by the respondent as a carpenter from 30th August, 2004 until 16th April, 2007. He stated that there were a number of other employees of Polish, Latvian, Lithuanian and Irish origin employed by the respondent during his period of employment. The complainant stated that he sustained a serious injury to his lower back in a work related accident on 10th October, 2006. He attended the Company Doctor on 11th October, 2006 and was certified unfit for work because of the injury to his lower back. The complainant stated that he attended physiotherapy for a number of weeks and remained absent from work on sick leave until the end of January, 2007. The complainant stated that he informed the respondent that he would be prepared to travel to Poland for a scan and treatment for his back injury. However, he claims that the respondent demanded that he did not go to Poland for treatment but rather that he continue treatment in Ireland. The complainant stated that he took paid leave during the Christmas period and travelled to Poland on 28th December, 2006 for a computer tomography on his back.
3.2 The complainant stated that he attended the Company Doctor at the end of January, 2007 and he claims that it was agreed with the respondent that he should return to work on the basis that he would not be required to do any manual labour. The complainant claims that he attended work each day for a period of time and that he was requested to do administrative type duties such as typing on a computer and putting leaflets into envelopes. The complainant claimed that he was not trained to do this type of work and therefore he was not given any meaningful work to do by the respondent upon his return to work. The complainant submitted that the respondent failed to provide him with reasonable accommodation in terms of the manner in which his return to work was handled and the lack of meaningful work which he was provided with upon his return to work.
3.3 The complainant stated that he was unable to continue attending for work because of the severity of the back pain and he went absent again on certified sick leave in March, 2007. The complainant stated that he attended a specialist on 28th March, 2007 and it was confirmed following a scan that he would require surgery to his back. The complainant stated that he was presented with and requested to sign a Social Welfare document by the respondent in early April, 2007. The complainant stated that he refused to sign the document as it was in the English language and he could not understand its contents. The complainant stated that he requested the respondent to give him the document so that he could take it home and have it translated into Polish by a friend. However, he claims that the respondent informed him that he should sign the document there and then. The complainant stated that he refused to sign the document and he requested the respondent to fax the document to his legal representative.
3.4 The complainant stated that he was subsequently informed by the respondent at a meeting on 16th April, 2007 that his sick pay would be discontinued and that the cost of his further medical treatment would not be covered by the company. The complainant claims that the medical appointment which he had been scheduled to attend on 11th April, 2007 was also cancelled by the respondent. The complainant claims that the respondent's decision to cease paying his wages at that juncture was directly attributable to the fact that he had contacted his legal representative in relation to the discriminatory treatment to which he had been subjected following the accident and that he had initiated a claim for personal injuries. He submitted that this treatment amounted to victimisation within the meaning of section 74(2) of the Employment Equality Acts. The complainant also claims that he was subjected to a victimisatory dismissal on 16th April 2007 within the meaning of section 74(2) of the on the basis that the respondent ceased paying his wages on this date as a result of the contact that he had made with his legal representative in relation to this matter.
4. Summary of the Respondent's case
4.1 The respondent stated that its company, which was engaged in the manufacture of timber frame housing, was formed in 2003 and ceased trading in December, 2007 as a result of the economic downturn in the construction industry. The respondent employed approx. 100 workers of Polish, Irish, English, Lithuanian and Latvian origin in and around April, 2007 (with workers of Polish origin accounting for approx 80% of the workforce). The respondent stated that the complainant was employed as a carpenter on 30th August, 2004 and he was involved in the manufacture of floors for timber frame houses. The respondent stated that the complainant sustained an injury to his back during the course of his work on 10th October, 2006 and he was certified unfit for work due to the injury sustained after he attended the Company Doctor the following day. The respondent stated that it covered the cost of both the complainant's medical and physiotherapy expenses after the accident at work and it continued to pay him whilst he was certified unfit for work.
4.2 The respondent stated that the complainant was certified medically fit to return to work and undertake light duties in January, 2007. The respondent stated that the complainant was afforded reasonable accommodation upon his return to work and he was facilitated with light duties such as going to the store for supplies, operating a crane by remote control and certain administrative tasks (and it attempted to provide him with computer related training). The respondent stated that it made every effort possible to try and facilitate the complainant with alternative work but he was not keen to undertake those types of duties and in early March, 2007 the complainant indicated that he could no longer continue to undertake the light duties as his back was too painful.
4.3 The respondent stated that the complainant had been in receipt of full pay from the time he went absent on sick leave in October, 2006 up to the point where he went on certified sick leave again in March, 2007. The respondent stated that its normal sick pay policy was to pay an employee for the first three days of a sick absence and thereafter the employee would be obliged to claim the relevant social welfare payment. The respondent stated an exception to this policy was made in terms of the manner in which it dealt with the complainant up to that juncture and it claimed that no other employee in the history of the company (regardless of nationality) had been paid sick pay for as long as the complainant. The respondent stated that it was not legally obliged to pay the complainant whilst he was absent on sick leave and it claimed that it could not afford to do so any longer, especially in light of the financial difficulties that it was experiencing as a result of the downturn in the construction industry at that juncture.
4.4 The respondent stated that it informed the complainant of this position at a meeting on 5th April, 2007 and that he was entitled to claim Occupational Injury Benefit while he was absent from work on certified sick leave. The respondent stated that it advised the complainant of the relevant procedure to claim this benefit and presented him with the relevant forms to make such a claim. The respondent accepts that the complainant refused to sign the forms on this occasion and it claims that it did not attempt to pressurise him into doing so. The respondent stated that the complainant returned to the workplace on 13th April, 2007 and he was informed that he could not return to work until he was certified medically fit to do so. The respondent again explained to the complainant that he was entitled to claim Occupational Injury Benefit whilst absent on certified sick leave and he was given the relevant claim forms and an accompanying letter that was required by the Department of Social Welfare. The respondent stated that the complainant returned to the workplace on 16th April, 2007 and agreed to complete the forms to claim Occupational Injury Benefit. The respondent stated that it explained to the complainant on this occasion that his job remained there for him if and when he was certified medically fit to return to work.
4.5 The respondent rejects the claim that the decision to stop paying the complainant while he was absent on sick leave was in any way connected to the fact he had contacted his legal representative regarding the accident at work or that he had initiated a claim for personal injuries as a result of the injuries sustained in the accident. The respondent claims that it had already taken the decision to cease paying the complainant's wages prior to receiving any contact from his legal representatives or notification that he intended to consult his legal representatives regarding the accident or the alleged discriminatory treatment arising from this accident. The respondent also denies that the complainant was subjected to a victimisatory dismissal on 16th April, 2007 and it claims that his employment was not terminated until 17th December, 2007 when he (along with 70 other workers) were made redundant when the company ceased to trade. The respondent stated that the complainant was paid his statutory redundancy entitlements upon being made redundant. The respondent denies that the complainant was subjected to discrimination on either the disability or race grounds.
5. Conclusions of the Equality Officer
5.1 Section 85A of the Employment Equality Acts sets out the burden of proof which applies in a claim of discrimination. It requires the complainant to establish, in the first instance, facts from which it may be presumed that there has been discrimination in relation to him. If he succeeds in doing so, then, and only then, is it for the respondent to prove the contrary. The Labour Court has held consistently that the facts from which the occurrence of discrimination may be inferred must be of "sufficient significance" before a prima facie case is established and the burden of proof shifts to the respondent. In deciding on this complaint, therefore, I must first consider whether the existence of a prima facie case has been established by the complainant. It is only where such a prima facie case has been established that the burden of proving there was no infringement of the principle of equal treatment passes to the respondent.
5.2 Section 6(1) of the Employment Equality Acts, 1998 to 2008 provides that discrimination shall be taken to occur where "a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2).....". Section 6(2)(h) of the Acts defines the discriminatory ground of race as follows - "as between any 2 persons, ... that they are of different race, colour, nationality or national origins" and section 6(2)(g) of the Acts defines the disability ground as follows "... that one is a person with a disability and the other either is not or is a person with a different disability ".
5.3 In a recent Determination the Labour Court whilst examining the circumstances in which the probative burden of proof operates held as follows:-
"Section 85A of the Act provides for the allocation of the probative burden in cases within its ambit. This requires that the Complainant must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination. However they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. Section 85A places the burden of establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule.
In this case it was submitted that the Complainant was treated badly by the Respondent and the Court was invited to infer that he was so treated because of his race. Such an inference could only be drawn if there was evidence of some weight from which it could be concluded that persons of a different race or nationality were or would be treated more favourably. All that has been proffered in support of that contention is a mere assertion unsupported by any evidence."
5.4 Accordingly, the issues for decision in this case are as follows:
Did the respondent fail to comply with its obligation in accordance with the provisions of section 16 of the Acts to provide reasonable accommodation to the complainant upon his return to work in January, 2007?
Did the respondent subject the complainant to victimisation within the meaning of section 74(2) of the Acts in terms of its decision to cease paying him in April, 2007 while he was absent from work on sick leave?
Did the respondent subject the complainant to a victimisatory dismissal within the meaning of section 74(2) of the Acts in April, 2007 after he had contacted his legal representative to seek advice about the respondent's decision to cease his pay?
Did the respondent subject the complainant to discrimination on the grounds of his race in terms of his conditions of employment in relation to its decision to cease paying him in April, 2007 while he was absent from work on sick leave?
In reaching my decision, I have taken into account all of the submissions, written and oral, made by the parties.
Reasonable accommodation
5.5 The first element of the complainant's claim that I must consider is whether or not the respondent failed to comply with its obligations to provide reasonable accommodation to the complainant, as a person with a disability, in accordance with the provisions of section 16 of the Acts when he returned to work in January, 2007. Disability is defined in section 2 of the Employment Equality Acts as including the malfunction of a part of a person's body. It was accepted by both parties that the complainant sustained an injury to his back in a work related accident in October, 2006 and based on the evidence adduced it is clear that he still continues to suffer from the affects of this back injury. I am satisfied that the complainant is a person with a disability within the meaning of section 2 of the Acts.
5.6 Section 16(1)(b) of the Employment Equality Acts provides an employer with a complete defence to a claim of discrimination on the disability ground if it can be shown that the employer formed a bona fide belief that the complainant is not fully capable, within the meaning of the section, of performing the duties for which they have been employed. However, this defence is tempered by the provisions of section 16(3)(b) of the Acts. Section 16(3) of the Acts provides that a person with a disability must be considered fully competent and capable of performing the duties attached to a particular post if s/he could do so with the provision of special treatment or facilities, provided the provision of such treatment does not give rise to more than an nominal cost to the employer. The nature and extent of the employer's duty to an employee with a disability was considered by the Labour Court in An Employer -v- A Worker (Mr. O) No. 1 when it adopted the approach set out previously by that Court in An Employer -v- A Worker.
5.7 In this case the Labour Court interpreted section 16 of the Employment Equality Acts as a process orientated approach which places an obligation upon an employer to embark upon a process of ascertaining the real implications for the employee's ability to do the job, taking appropriate expert advice, consulting with the employee concerned and considering with an open mind what special treatment or facilities could realistically overcome any obstacles to the employee doing the job for which s/he is otherwise competent and assessing the actual cost and practicality of providing that accommodation.
5.8 Having regard to the evidence adduced in the present case, I am satisfied that the respondent undertook a process orientated approach both in terms of the manner which it dealt with the complainant's disability following his accident in the workplace and upon his return to work following this accident. It is clear that the respondent embarked upon a process of consultation with both the complainant and his medical consultant from the time that he went absent on sick leave in October, 2006 until he was certified medically fit to resume work and undertake light duties in January, 2007. I note that the complainant had been employed as a carpenter and I accept the respondent's evidence that given the nature of its business there wasn't a very expansive range of "light duties" available for assignment to him especially in light of the nature of the back injury he had sustained. However, I am satisfied that the respondent acted reasonably in the circumstances and that it took appropriate measures to try and accommodate the complainant upon his return to work by assigning him the type of duties that would not exacerbate his back injury. I accept the respondent's evidence that the complainant indicated in March, 2007 that he was not able to undertake the light duties because of the pain in his back and that he subsequently went absent from work on certified sick leave. In the circumstances, I am satisfied that the respondent did not fail in its obligations to provide reasonable accommodation to the complainant as a person with a disability in accordance with the provisions of section 16(3) of the Acts. Accordingly, I find that the respondent is entitled to rely upon the defence available in section 16(1)(b) of the Acts.
Victimisation
5.9 The next element of the complainant's claim that I must consider relation to the allegation that he was subjected to victimisation by the respondent. Victimisation is defined at section 74(2) of the Acts as "For the purposes of this Part victimisation occurs where dismissal or other adverse treatment of an employee by his or her employer occurs as a reaction to -
a complaint of discrimination made by the employee to the employer
any proceedings by a complainant
..... ....
an employee having given notice of an intention to take any of the actions mentioned in the preceding paragraphs".
The complainant has claimed that the respondent decided to discontinue paying him once it became aware that he had contacted his legal representative about the accident he had sustained at work and the fact that he initiated proceedings for the alleged discriminatory treatment and personal injuries arising from the accident. The complainant claims that the respondent's decision to discontinue paying him while he was absent on sick leave amounts to victimisation. The respondent denies that the decision to discontinue paying the complainant in April, 2007 whilst he remained absent on sick leave was in any way connected to the fact that he had contacted his legal representatives regarding the accident or his decision to initiate proceedings for the alleged discriminatory treatment or personal injuries arising from the accident. The respondent claims that this decision was taken as a direct consequence of the strict financial constraints under which the company was operating at that juncture. In any event, the respondent claims that the decision to cease paying the complainant at that juncture was taken prior to when it became aware that he had contacted his legal representative, or the date upon which it was notified by the complainant or his legal representative, of his intention to pursue a claim for discrimination or personal injury arising from the accident.
5.10 In considering this issue, I note the respondent's evidence that its sick pay policy was to pay an employee for the first three days of the sick absence and thereafter the employee would be obliged to claim the appropriate benefit/payment from social welfare. It was not in dispute that the complainant was paid by the respondent from the time that he sustained the injury in October, 2006 until April, 2007 which amounted to a period of approx. 6 months. The respondent claimed that no other employee in the history of the company (regardless of nationality) had been paid sick pay for such a period of time and that an exception to its sick pay policy was made in the case of the complainant. The respondent stated that it was experiencing severe financial difficulties at that particular juncture and that it simply could not afford to pay the complainant any longer while he remained absent on sick leave. The respondent gave evidence that the complainant was informed at a meeting on 5th April, 2007 that it was discontinuing to pay him whereas it did not receive the initial correspondence from the complainant's solicitor regarding the alleged discriminatory treatment and personal injuries claim arising from the accident until a week after this date.
5.11 Having regard to the evidence adduced, I have found the respondent's evidence to be more compelling in relation to this issue and I accept its evidence that the decision to discontinue paying the complainant was communicated to him on 5th April, 2007 and that this decision was taken purely on the basis of financial considerations. I am satisfied that this decision was taken and communicated to the complainant before he had indicated to, or informed the respondent, either in person or through his legal representative, of his intention to make a complaint in relation to the alleged discriminatory treatment or for personal injuries arising from his accident. In the circumstances, I find that this decision was not in any way connected to the contact that the complainant had made with his legal representative with a view to pursuing legal proceedings in relation to this matter but rather was directly attributable to the severe financial constraints under which the respondent was operating at that juncture. The respondent's evidence regarding the financial difficulties it was experiencing is corroborated by the fact that the company ceased to trade only a matter of eight months later (in December, 2007). Accordingly, I find that the complainant has failed to establish a prima facie case of victimisation in terms of the respondent's decision to cease paying him in April, 2007 contrary to section 74(2) of the Employment Equality Acts.
Victimisatory Dismissal
5.12 The complainant also claims that he was effectively dismissed from his employment on 16th April, 2007 when the respondent ceased to pay him any longer and he contends that this amounted to a victimisatory dismissal within the meaning of section 74(2) of the Acts. The respondent denies that the complainant was dismissed from his employment on 16th April, 2007 and it claims that his job was still available to him at that juncture if he had been certified medically fit to return to work. The respondent stated that the complainant's job continued to be available until his employment was terminated by reason of redundancy on 17th December, 2007 when the company ceased to trade. The respondent stated that the complainant along with approx. 70 other employees were made redundant on this date and it submitted that the complainant was paid a statutory redundancy lump sum in the amount of €2,668.30 upon the termination of his employment (the complainant accepts that he received this payment from the respondent).
5.13 Section 2(1) of the Acts defines dismissal as including:
"the termination of a contract of employment by an employee (whether prior notice of termination was or was not given to the employer) in circumstances which, because of the conduct of the employer, the employee was or would have been entitled to terminate the contract, without giving such notice, or it was or would have been reasonable for the employee to do so .... ".
Having regard to the evidence adduced, I do not accept that the complainant was subjected to a dismissal from his employment, either victimisatory or otherwise, when the respondent took the decision to discontinue paying him in April, 2007. As I have already stated, I am satisfied that the reason the respondent took this decision at that juncture was purely for financial reasons and was not in any was attributable to the fact that the complainant had contacted his legal representative regarding the accident or to initiate proceedings for the alleged discriminatory treatment or for personal injuries. I am satisfied that the complainant's employment with the respondent was ultimately terminated by reason of redundancy on 17th December, 2007 when he and approx. 70 other employees were made redundant when the company ceased to trade. I accept the respondent's evidence that the complainant's position continued to be available to him from April, 2007 to December, 2007 and that he would have been facilitated with a return to work if he had been certified medically fit to resume his employment. Accordingly, I find that the complainant has failed to establish a prima facie case of victimisatory dismissal contrary to section 74(2) the Employment Equality Acts.
Conditions of Employment
5.14 The final element of the complainant's claim that I must consider is whether or not the respondent's decision to cease paying him full pay and to cover the cost of his further medical treatment while he was absent on continued sick leave in April, 2007 amounted to discrimination on the grounds of his race. The complainant has claimed that the respondent would not have subjected one of its Irish workers to such treatment in similar circumstances. In considering this issue, I note the respondent's evidence that its sick pay policy was to pay an employee for the first three days of the sick absence and thereafter the employee would be obliged to claim the appropriate benefit/payment from social welfare. It was not in dispute that the complainant was paid full pay from the time that he sustained the injury in October, 2006 until April, 2007 which amounted to a period of approx. 6 months.
5.15 I accept the respondent's evidence that no other employee (regardless of nationality) in the history of the company had been paid sick pay for such a period of time and that an exception to its sick pay policy was made in the case of the complainant. I have found the respondent's evidence to be credible in relation to this issue and I accept that the reason it decided to discontinue payment of sick pay to the complainant in April, 2007 was not in any way connected to his Polish nationality but rather was directly attributable to the severe financial constraints under which it was operating at that juncture. Accordingly, I find that the complainant has failed to establish a prima facie case of discrimination on the grounds of his nationality in relation to this aspect of his complaint.
Decision
6.1 Having investigated the above complaint, I hereby make the following decision in accordance with section 79(6) of the Employment Equality Acts, 1998 to 2008. I find that:
the respondent did not discriminate against the complainant on the ground of disability contrary to section 6(2)(g) of the Acts in terms of its obligations under section 16 of the Acts.
the respondent did not subject the complainant to victimisation or victimisatory dismissal contrary to section 74(2) of the Acts.
the respondent did not discriminate against the complainant on the race ground pursuant to section 6(2)(h) of the Acts of the Acts in terms of his conditions of employment and contrary to section 8(1) of the Acts.
Accordingly, I find in favour of the respondent in this case.
______________
Enda Murphy
Equality Officer
13th April, 2011